February 2, 2011

On Hunting for Hypocrisy

The other day I wrote about the perils of accusing someone of hypocrisy.  Today, I found a good example of a related danger: trying to make others look like hypocrites.

It comes, as such misguided things often do, from state legislators with too much time on their hands (via):
Five South Dakota lawmakers have introduced legislation that would require any adult 21 or older to buy a firearm ‘sufficient to provide for their ordinary self-defense.’

* * *

Rep. Hal Wick, R-Sioux Falls, is sponsoring the bill and knows it will be killed. But he said he is introducing it to prove a point that the federal health care reform mandate passed last year is unconstitutional.

‘Do I or the other cosponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,’ he said.
Now, the intent here appears to be to provoke a knee-jerk reaction from liberals defending health care reform.  Confront them with an “individual mandate” to buy a gun and watch them fall all over themselves trying to distinguish it from the mandate to buy healthcare.  Just add water – instant hypocrisy.
Except the two issues don’t match up.

For one thing, while lower courts are splitting on the constitutionality of health care reform, there is a common theme that runs through all that litigation.  It has to do with the actual issue raised by the plaintiffs in those cases.  They are not arguing that the insurance purchase mandate violates some individual right protected by the Constitution to not have the government tell you how to run your life.  They are arguing that the mandate exceeds the scope of the authority of the federal government.

It’s a subtle, but important distinction, that these arguments sound in federalism rather than individual rights.  Most importantly, for Representative Wick, it means that this litigation, which will surely only come to an end after the Supreme Court weighs in, says nothing about what states may do in their jurisdiction.  It will create no enforceable individual right to assert against, say, West Virginia or South Dakota.  Or, of course, Massachusetts, where Mitt Romney’s mandate-driven health care plan survived state constitutional attack.
So whatever point Wick and his cosponsors are trying to make falls flat.

But, even beyond that, there’s a decent argument that the federal government actually could mandate that everybody buy a gun.  Exercising its authority under Article 1, Section 8 of the Constitution to “provide for calling forth of the Militia,” Congress just about did that in 1792:
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . .. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder;
Emphasis mine.

So, a complete fail in attempting to rope your adversaries into being hypocrites.  Well played, Rep. Wick!


  1. My friend - your actual point is observed and noted. However, the 1792 language you shared is discriminatory in the race, age, and gender areas.

    Question - does the judge's comments (which I have not read myself, only heard through news reports) play at all? If I am correct, the Florida judge commented on the federal governments over-reach trying to mandate citizens to make a purchase they don't want to make. Will the US SCOA consider his comments?

  2. Well of course it's discriminatory, it's from 1792! And even this South Dakota proposal had an age limitation.

    Honestly, I've not read any of the health care cases that closely, because they don't really matter at this point. This is one of those issues you know will wind up at SCOTUS, so there's not a whole lot of point in getting in deep right now.

    But assuming you're right about what the judge in Florida said, "over-reaching" arises from the federalism angle, not any individual rights being asserted. The argument is that the mandate lies beyond the powers of the federal government as set forth by the Constitution.

  3. So, are you hinting that the individual states could mandate health insurance coverage and it would be Constitutional?

  4. My understanding is that the Massachusetts mandate was upheld, but I haven't looked it up so I'm not sure what the theories were (whether they were state or Fed based). There may be other examples.

    It would depend on what a state's constitution said about legislative power and individual rights. States generally have plenary power to do whatever they want, provided that they don't run afoul of state/fed constitutional rights, relevant fed laws, and treaties. Thus, states unquestionably have the police power - the power to make certain acts a crime. By contrast, the feds ability to do so is limited to federal enclaves and things associated with the powers given by the Constitution.

    That's why (for example) the fed gun laws all require the guns to have been "in and effecting interstate commerce." That's the hook for federal jurisdiction. States can outlaw guns just for the hell of it, subject to the still evolving limits of the Second Amendment (and state equivalents).

    There's a reason why the challenges to the health car law, which are the product of lots of bright libertarian/right-wing minds, are couched in terms of federalism, not individual rights.